Barbour v. Kosciusko Medical Clinic et al
MEMORANDUM OPINION re 38 Order on Motion to Remand to State Court, Order on Motion to Dismiss. Signed by Senior Judge Neal B. Biggers on 9/30/2016. (llw)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
LINDA KAY BARBOUR, INDIVIDUALLY,
AND AS EXECUTRIX OF THE ESTATE
OF JOHN McBEE BARBOUR, AND ON
BEHALF OF ALL WRONGFUL DEATH
BENEFICIARIES OF JOHN McBEE BARBOUR
CIVIL ACTION NO. 4:15-cv-147-NBB-JMV
KOSCIUSKO MEDICAL CLINIC;
KOSCIUSKO MEDICAL INVESTMENT GROUP, LLC;
PREMIER MEDICAL GROUP OF MISSISSIPPI, LLC;
TIMOTHY M. SOUTH; THE UNITED STATES
OF AMERICA; AND JOHN DOES 1-5
This cause comes before the court upon the motion to sever and remand filed by
defendants Kosciusko Medical Clinic, Kosciusko Medical Investment Group, LLC, Premier
Medical Group of Mississippi, LLC, and Timothy South (the “Kosciusko Defendants”) and the
motion to dismiss or, in the alternative, for summary judgment filed by the United States of
America. Upon due consideration, the court is ready to rule.
Factual and Procedural Background
The plaintiff, Linda Kay Barbour, brings this action individually, as Executrix of the
Estate of John McBee Barbour, and on behalf of the wrongful death beneficiaries of her late
husband, John McBee Barbour, against the above-named defendants alleging causes of action for
negligence, breach of contract, and vicarious liability arising from the death of John McBee
Barbour. On February 26, 2013, Mr. Barbour visited the Kosciusko Medical Clinic in
Kosciusko, Mississippi, complaining of shortness of breath and extreme weakness. The clinic
had treated Mr. Barbour for many years and, the plaintiff alleges, was well aware of his risks for
cardiovascular complications. Mr. Barbour was seen by nurse practitioner Timothy South who
allegedly interpreted Mr. Barbour’s cardiovascular rate and rhythm as normal despite an
apparent pulse reading of 127. South ultimately diagnosed Mr. Barbour with bronchitis,
pneumonia, and shortness of breath and sent him home. He did not see a doctor while at the
The following day, Mr. Barbour continued to have difficulty with shortness of breath.
The plaintiff contacted the clinic and was directed to get Mr. Barbour to the emergency room.
Mr. Barbour died before the ambulance arrived.
The plaintiff filed this action on February 23, 2015, in the Circuit Court of Attala County,
Mississippi. She filed an amended complaint on August 17, 2015, adding the United States as a
defendant on the alleged basis that “the Clinic was contracted with Defendant, United States
Department of Veterans Affairs to provide healthcare to qualifying veterans.” The plaintiff
alleges Mr. Barbour qualified for veteran care at the clinic based on his service in the United
States Navy during the Vietnam conflict. The United States subsequently removed the case to
this court. The Kosciusko Defendants have moved to sever the plaintiff’s claims against them
from her claims against the United States and have moved to remand, and the United States has
moved to dismiss based on sovereign immunity, asserting that the Kosciusko Defendants are
independent contractors and not “employees of the government” under the Federal Tort Claims
Act, 28 U.S.C. § 2671, et seq. The plaintiff responded to the defendants’ motions by filing a
motion for additional time to conduct discovery and to stay the motion to sever and remand,
asserting that the documents in the record at that time did not establish that the Kosciusko
Defendants were independent contractors of the United States.
On January 13, 2016, the magistrate judge granted additional limited discovery on the
issue of whether the Kosciusko Defendants are independent contractors of the United States.
The discovery was to be completed within sixty days, and the plaintiff’s responses to the
defendants’ motion to remand and motion to dismiss were to be filed within fourteen days after
the conclusion of the sixty-day period. The record reflects that this additional discovery took
place, but the plaintiff never filed a response to the defendants’ motions.
“The United States, as sovereign, is immune from suit save as it consents to be sued . . .
and the terms of its consent to be sued in any court define that court’s jurisdiction to entertain the
suit.” U.S. v. Mitchell, 445 U.S. 535, 538 (1980). To recover against the United States in this
case, the plaintiff must prove that the government waived its sovereign immunity pursuant to the
Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. (“FTCA”). The FTCA, because it is a waiver
of sovereign immunity, must be strictly construed, and any ambiguities must be resolved in favor
of the sovereign. McLaurin v. U.S., 392 F.3d 774, 780 (5th. Cir. 2004). The FTCA provides the
exclusive remedy for injuries resulting from the negligence of a federal agency or a federal
employee acting within the course and scope of his employment. 28 U.S.C. § 2679(b)(1). The
FTCA does not, however, extend to negligent acts of independent contractors of the United
States. Linkous v. U.S., 142 F.3d 271, 275 (5th Cir. 1998). “Therefore, if the act was not
committed by an ‘employee of the Government,’ then the court must dismiss for lack of subject
matter jurisdiction under Fed. R. Civ. P. 12(b)(1).” Id. (citing Broussard v. U.S., 989 F.2d 171,
177 (5th Cir. 1993)).
The Kosciusko Defendants oppose this court’s jurisdiction over the claims against them
based on the fact that they are independent contractors and not “employees of the government.”
They assert that because they are independent contractors of the United States, the FTCA waiver
of sovereign immunity does not apply in this case; the United States is not a proper party to this
action; and, therefore, the case was improperly removed from the Circuit Court of Attala County.
The Kosciusko Defendants assert that the Veterans Administration contracted with a
company known as CR Associates, Inc., for the provision of primary care services to veterans.
CR Associates, Inc., then subcontracted those contractual obligations out to the Kosciusko
Defendants. Initially, the Kosciusko Defendants did not have in their possession and could not
produce the applicable and executed contracts between CR Associates and the United States
relevant to this case, and the plaintiff’s primary opposition to these motions was based on this
lack of evidence. Counsel for CR Associates, however, then produced the contracts, and the
Kosciusko Defendants supplemented the record with the same.
The supplemented record now contains the contract between the Department of Veterans
Affairs and CR Associates executed on June 28, 2012, which extends the terms of the United
States’ agreement with CR Associates through February 28, 2013, thereby covering the date of
Mr. Barbour’s care. This contract specifically provides that “[c]ontractor employees are not
covered by the Federal Tort Claims Act” and that “[a]ny settlement or judgment arising from a
Contractor employee’s action or non-action is the responsibility of the Contractor and/or
Also made part of the record is the 2006 Subcontracting Agreement between CR
Associates and the Kosciusko Defendants, which is effective for a total of five years by its
original terms; however, in the fifth year, 2011, a modification was executed and provided that
performance would continue under the existing subcontracting agreement through the life of the
existing contract between CR Associates and the Department of Veteran Affairs, including any
extensions or interim contacts, until performance began under a newly awarded contract.
Kosciusko Medical Clinic continued providing medical care under the subcontracting agreement
and a second modification through January 20, 2014. The second modification, dated December
9, 2013, extending the contractual period through January 20, 2014, acknowledges the
relationship that existed between CR Associates and the Kosciusko Medical Clinic “for nearly
eight years under the previous contract.”
The court finds that these documents and the record as a whole conclusively prove that
the Kosciusko Medical Clinic provided care as independent contractors to veterans eligible for
VA benefits under the 2006 subcontracting agreement and that this and the other applicable
agreements cover the date Mr. Barbour was treated on February 26, 2013. For this reason, the
court finds that the United States is immune under the Federal Tort Claims Act and was
improperly joined in this case. The court must dismiss the United States as a defendant. In
doing so, the court divests itself of jurisdiction, as the only possible jurisdictional basis at this
point would be diversity of citizenship, and the parties in this action are all citizens of
Mississippi. The court must, therefore, grant the Kosciusko Defendants’ motion to remand.
For the foregoing reasons, the court finds that the United States’ motion to dismiss is well
taken and should be granted. The court further finds that the Kosciusko Defendants’ motion to
remand is also well taken and should be granted. The case will be remanded to the Circuit Court
of Attala County, Mississippi. A separate order in accord with this opinion shall issue this day.
This, the 30th day of September, 2016.
/s/ Neal Biggers
NEAL B. BIGGERS, JR.
UNITED STATES DISTRICT JUDGE
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